Ask to have the case moved to a New Zealand court

If someone has started a civil case against you in an Australian court and you’ve been served with the documents, you can ask for the case to be heard in a New Zealand court in certain circumstances.

You’ll need to ask the Australian court to suspend (stay) the proceeding.

Apply to stay an Australian court case

You need to apply to the Australian court using their forms and processes.

Find out more about the Australian court process to stay a case (external link)

A New Zealand lawyer is entitled to appear remotely before the Australian court when applying for an Australian court case to be stayed because it’s more appropriate for the case to be decided by a New Zealand court.

Time frame

The application usually needs to be made within 30 working days after the day you were served with the documents starting the court case. You can ask the Australian court for a shorter or longer period to apply for a stay.

Hearing

The Australian court can make a decision without holding a formal court hearing. If you or the other party asks for a decision to be made with a formal court hearing, then the court must hold a hearing.

If the Australian court holds a hearing, you and your lawyer are entitled to appear before the court remotely (for example, by telephone conference or video link) if those facilities can reasonably be made available.

Find out more about appearing in an Australian court by video link or telephone

How the Australian court will decide

The Australian court can stay (suspend) the proceeding if it is satisfied that the New Zealand court:

  • has jurisdiction to determine the dispute and
  • is the 'more appropriate' court to determine the dispute.

The Australian court will decide on the ‘most appropriate’ court by looking at:

  • where the majority of the parties and witnesses live
  • where the subject of the dispute is located (for example, in a dispute over the sale of an airplane in Australia, an Australian court may be more appropriate to hear the dispute)
  • whether the contract says which courts should decide a dispute (different rules apply if the agreement is 'exclusive' – see the section below)
  • whether it’s most appropriate to apply New Zealand law to the dispute
  • whether a related or similar case has already started and where it’s being heard (for example, if an Australian and New Zealand company have a contractual dispute currently being argued in an Australian court, it may be more appropriate for the Australian court to consider any more disputes about the contract)
  • whether the case should be heard in a court where it will be easier for the disadvantaged party to take part (for example, if a large machinery company in New Zealand and a small farmer in Western Australia have a dispute and the machinery company regularly travels to Western Australia for other business, it would be easier and more affordable for the farmer to appear before a Western Australian court).

Exclusive choice of court agreement

Sometimes contracts say where a dispute about the contract will be heard. If this provision is an 'exclusive' choice of court agreement, then the court chosen in the contract must hear all disputes relating to the contract.

A choice of court agreement is exclusive if it is in writing and chooses the courts (or a specific court) of a specified country, to the exclusion of all other courts, as the only court to decide disputes between the parties.

Employment contracts and agreements mainly relating to personal, family or household purposes are not exclusive choice of court agreements.

The court won't enforce an exclusive choice of court agreement if:

  • it isn't legally made
  • either party lacked capacity to make the agreement
  • enforcing it would lead to a manifest injustice
  • the court in the agreement has already decided not to determine the proceedings.

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